If It’s [Was] Friday, It Must Be State Secrets, Hiding Abuse of Power, in the 9th Circuit
photo: Diane M. Byrne via Flickr
But for the moment, I want to take a look at Eric Holder’s state secrets invocation yesterday.
The case is one of the remaining surveillance suits for the government’s “dragnet” collection of telecom signals, parallel to EFF’s Jewel case. The government had already invoked state secrets in 2007. But after the Jeppesen decision this spring, EFF reactivated the case (yeah, I’m sure this is not the legal term). And so now, to try to throw the case out again, the government is reasserting its state secrets invocation.
The case is interesting for a couple of reasons. First, the timing. The Administration is invoking state secrets under its “old-is-new” state secrets policy, something Holder focuses on in his statement on the invocation.
Last month, I outlined new policies and procedures containing a system of internal and external checks and balances that the Department will follow each time it invokes the state secrets privilege in litigation. We designed those procedures to provide greater accountability for the use of the privilege and to ensure that the Department invokes the privilege only to the extent that it is absolutely necessary to protect national security. The procedures require a thorough, multi-stage review and rely upon robust judicial and congressional oversight.
The present case was reviewed under this new process. The Director of National Intelligence and the Director of the National Security Agency certified to the Department that disclosing information at issue in the case would jeopardize national security and provided classified information to support that conclusion. A review committee of senior Department officials, the Associate Attorney General, and the Deputy Attorney General all reviewed that information. Based on the recommendations from this review process, as well as my own personal review of the information provided, I concluded that we had no alternative but to assert the privilege to prevent the exposure of intelligence sources and methods.
As such, it appears that DOJ wants to pitch this invocation as hopey-changey proof of the reasonableness of its new process.
But then, even in his statement, Holder is invoking state secrets in a 9th Circuit case assuming that the government will win its Jeppesen case. Holder describes how DOJ attempted to carve out a part of this suit that could go forward while still protecting state secrets.
As part of our internal Department review, we specifically looked for a way to allow this case to proceed while carving out classified information, and ultimately concluded there was no way to do so.
That statement assumes the Executive–and not the Courts–gets to decide how much of a case gets thrown out with a state secrets invocation, an assumption that flies in the face of the Jeppesen decision. Curiously, though, a statement making that assumption also ends with the kind of humility we haven’t seen from the Holder DOJ in related suits.
Ultimately, the judicial system will determine whether we have drawn the line at the appropriate place, as is lawful and appropriate under our system of checks and balances. As always, we will respect the outcome of that process.
Recall, for example, the number of times the Holder DOJ has told Vaughn Walker (the judge in this case, too) that they didn’t really like his decision that FISA trumps state secrets and so were going to just ignore it. The same DOJ is now saying that the Courts really do get the final say.
But then look at these two references to ongoing intelligence operations–and the denial of any wrong-doing.
I did so only because I believe there is no way for this case to move forward without jeopardizing ongoing intelligence activities that we rely upon to protect the safety of the American people.
[snip]
Much like previous litigation in which the government asserted the privilege, the core claims in this case involve questions about ongoing intelligence operations, and allowing it to proceed would disclose critical activities of high value to the national security of this country.
We are not invoking this privilege to conceal government misconduct or avoid embarrassment, nor are we invoking it to preserve executive power. Moreover, we have given the court the information it needs to conduct its own independent assessment of our claim by filing a classified submission outlining the underlying facts and providing a detailed record upon which it can rely.
Though Holder wants to pretend that al-Haramain and Jeppesen were about ongoing programs, they in fact were about discrete crimes committed in the past, in programs that have–at least allegedly–been changed since the time of the crime. But here he emphasizes the ongoing nature of what we all know to be dragnet collection of US person and foreign data.
But I think the emphasis on “ongoing” programs and the claim that the invocation does not cover up crimes is a deliberate test for Walker. That is, Holder is asserting this is a legal program that can’t be litigated openly because, even though it is legal, Americans can’t know about it. I’m sure the secret declarations have a bunch of legalese describing how this ongoing dragnet collection is now legal, brought under compliance with FISA through a bunch of fancy lawyering and a damned compliant Congress. (Not that I buy that, but I do think that is what Holder is saying.)
In other words, I suspect that DOJ is not only trying to get out of litigating this case, but they’re testing the libertarian-minded Vaughn Walker to see whether he buys the legality of this program even while buying off on its secrecy.
It’s an interesting test, seeing as how Congress is about to further institutionalize such a program with its PATRIOT reauthorization.
It’s Friday?
I gotta stop drinking……
No, it WAS Friday when they made teh declaration. Decided to write about it today after I ran out of time on Mega-Dump Friday.
Thanks, EW…
BTW, what’s that letter or symbol after “Circuit” in the title? Is it supposed to be an exclamation point, or just an errant finger stroke?
Bob in AZ
Good thing you’ve got an extra hour tonight.
EW,
Your output in the past 24 hours has been phenomenal, even if you were just polishing up previously prepared drafts. Thanks so much!
Bob
PS Did you put yourself through the agony of watching the second half of the Michigan-Illinois football game? It was about as gut-wrenching as watching an hour-long speech by Mitch McConnell.
did ya mean: “The same DOJ is
notnow saying that the Courts really do get the final say.”Yes, I did, thanks.
From Holder’s statement:
Holder is trying to adopt Walker’s language here, by saying he is confident that the court’s “independent assessment” will come to the same conclusion that he has. It’s at least a step away from effectively stating that Marbury v. Madison was wrongly decided, as prior DOJ statements have seemed to do.
That said, Holder misses the point of the whole case with his next paragraph:
In its most narrow interpretation, this case is about four people who believe they were the victims of surveillance activities carried out by the US government that violate the US Constitution. If there’s a balance to be struck, it is between the need to protect national security information and the need for people to be able to hold the government accountable for unconstitutional actions.
In addition to the fine points EW makes here, I’d like to make a further point about the Obama DOJ’s invocation again of the state secrets privilege in this Shubert v. Bush (now Obama) case.
If one reads the Joint case management statement (3 page PDF) from back on August 27, 2009, you will find that the DOJ identifies that the Shubert v. Bush (now Obama) case addresses the “the nearly identical” allegations and complaints as those raised in one of the few remaining cases before Judge Walker, Jewel v. NSA.
And the DOJ, now with AG Holder’s state secret privilege invocation in Shubert v. Obama, are apparently trying to do a few things:
1. Taking another bite at the Shubert v. Obama apple that EFF argues is not allowed because the DOJ failed to timely renew its motion.
2. Again stall out the next normal proceeding in Shubert v. Obama which was to be discovery.
3. In my view, telegraph that the DOJ will also take the very same approach in Jewel v. NSA with another state secrets privilege invocation.
The DOJ is basically saying that whichever case Judge Walker addresses first, Shubert v. Obama or Jewel v. NSA, we’re gonna reassert state secrets privilege so you might as well just dismiss these cases.
And as IANAL, I strongly recommend caveat emptor with regard to my opinions. *g*
I am somewhat perplexed by the timing – why did they wait till now? And why bother now, did they envision losing otherwise?
I don’t think it had much to do with legal considerations, but political ones. I think they waited, so as to be able to keep the state secrets discussion out of the media spotlight. Let health care reform, Afghanistan troop deployments, and Wall Street profits take the headlines, and pay no attention to that lawyer behind the curtain.
Tis the same question that I had.
It appears that Shubert v. Obama was the next on the schedule (before further Jewel v. NSA proceedings), and with apparently discovery the next stage (per the EFF’s position), it may have been the deciding factor.
Shoot down Shubert v. Obama now and cancels out Jewel v. NSA as well.
Two birds, one stone.
At the very least, the DOJ’s states secret invocation on Shubert v. Obama delays once again any bad next stage thingies happening until further proceedings address the privilege reassertion.
If you can’t win, delay losing!
Well, yeah, I guess; but if you are going to assert SS, why not do it at inception and be done with it? Why take a chance on being accused of laches or waiver, why do anything. Assert it and set the mark. I think the timing now is probably at least in part because of the 9th Circuit acceptance of en banc rehearing a couple of days ago and to prick Walker, who is about to rule on al-Haramain. They may want to make a little showing about how their “new and improved” (like hell it is, but I regress) super duper honest and fair SS process just demands that all these cases out in NDCA and the 9th just have to be quashed.
That is my .02.
marcy, in your para that begins “Recall, for example, the number of times…” is that a typo where you have the word “not” – seems like it should be “now” (talking about DoJ actually letting judiciary make their rulings and (possibly) abiding by them).
Tis worth more than that!
And when you do, that 10/18/2004 CIA Office of Medical Services (OMS) Guidelines on medical and psychological support to detainee rendition, interrogation and detention document (29 page PDF), is a treasure trove of “admissions against interest”.
Whether or not John Durham ever puts a prosecutorial focus on the CIA’s OMS, at the very least, the AMA should be removing medical licenses and barring any future medical practice for any involved OMS medical practioners. Shades of Doctor Mengele!
I’ve been looking at that myself. It’s quite the document, and would love to see what jumps out when Marcy and others put it in context.
Given her dot connecting skills, I suspect we’ll all be flabbergasted…once again. *g*
My Lord. The unredacted information on waterboarding and other torture techniques is damning. Whatever can those huge expanses of blackout hide that is worse?
And this document – Department of Justice Criminal Division Documents (61 page PDF), was not up at the ACLU last night, but has some “interesting” bits as well.
Page 3 has a chart with a lot of redactions. The chart is apparently the DOJ list of criminal referrals regarding detainees to the DOJ OIG. What is interesting about this page is that it refers to an referral on March 30, 2004 where the OIG had to recuse itself due to a “personnel conflict”.
I wonder just what Glenn Fine & Co. were doing that involved them with detainees that required a recusal?
And on page 16 of that document, the OIG “conflict” is again mentioned on a CIA case, but most of the rest is redacted.
They also mention a “Garrity issue” either with respect to that CIA case or the very next one which appears to be the one about the Iragi General who died at a US base in Iraq.
I had to Google what a “Garrity issue” was, and to my surprise I got this:
And another juicy bit on page 18 of that document, there is a #5 which says it was a “GC” (CIA General Counsel?) referral. It then says “declined under OLC opns…”.
More juicy bits from Friday’s ACLU document dump – The government provided the “Reprocessed FBI Office of Inspector General Report” which has been updated to unredact stuff that was released in other things like the CIA OIG Special Report, etc.
While reading through the Pages 101-220 document (120 page PDF), on page 14 it has this new juicy bit:
(My Bold)
My memory may be failing me, but this is the first I’ve read that sleep deprivation could be used for up to 11 days. The previous limit that I was aware of was something on the order of 5-7 days.
11 was formally in place up until the second round of techniques memo in 2005.
Ahh…then it was my memory failing. Good to know. *g*
and at others too
If I understand it correctly, Garrity also comes in when someone isn’t necessarily told that they are immunized, but is told that they will lose their job if they don’t answer questions or take actions. I noticed several polygraph references too and wonder if someone was forced to take a polygraph or be fired, or if it is just a matter of other statements.
@34 – I’ve taken a quick look at Blair’s Declaration (I’m just flitting around without sequence or order today) and I notice that he is straying from the “sources and methods” to now using “intelligence activities, sources and methods” Um, like maybe there are ways to reveal what the activity is/was (mass, warrantless surveillance of US citizens) without revelaing sources and methods, but they’d really rathr not. I’m not sure he has an authority for “intelligence activities” generically separate from sources and methods, but maybe so.
@21 I know EW will pull together lots of threads, but for some context, in the earlier comments I linked to The Guardian piece that I think Leahy’s letter was about, which will leave some interesting elements open as to how forthright Muller was in his communications with Leahy.
Along a similar vein, it looks like one of the matters being reviewed was the Mowhoush sleeping bag killing (p. 16 “Iraqi gen goes to base” and p. 18 “late 11/03 homicide not referred yet IG working with Army, CID CIA assets w/detainee a couple of days before, Cong notified 1/29/04”)
It would be a bit interesting to figure out who in Congress was notified and about what. Some of the overall facts or alleged facts that no one has reviewed (most of these seem to have been left out of the public record for the court martial that ended up giving an extensive period of torture sessions resulting in a torture death a 60 day activities restriction **now go imagine if these same things had happened re: Gen Petraeus and his family) are surfacing some now in a civil suit brought by one of Mowhoush’s children.
EW did a good post a monthish or so ago with some of the prior releases
http://emptywheel.firedoglake.com/2009/09/21/mowhoush-and-al-jamadi/
One thing she notes there is that despite the note above re: “Cong. notified 1/29/04” there were docs in that earlier dump indicating that SSCI and HSCI were asking for briefings on Mayish of 05 about the treatment of Mowhoush. Obviously, for war crimes and a death in military detention, you’d think that Armed Services and Levin etc. would be getting a briefing too,and it does look like a SAC staffer, Jennifer Chartrand, may have gotten on. In any event, it is a very grave violation of the Geneva Conventions to take someone and just hand them off to be worked over by adverse and hostile local gangs, which appears to be what was being done with Mowhoush – the allegations are that CIA had “assets” among locals who were happy to work over a Baathist general and the CIA arranged for and oversaw those torture sessions. Apparently the military thought their own torture sessions were pretty much excused bc it’s likely their suffocations and beatings wouldn’t have killed if the General hadn’t already had some broken ribs from his CIA torture sessions.
And all for – what? Well, apparently there was a lot of pressure to get WMDs info at the time. I’d guess maybe that General wasn’t “cooperative” since he didn’t “give us” the non-existant info. And how is it that he walked onto a base to start with (voluntarily handed himself over to be tortured to death). Well, we had taken hostages (also a violation of the Geneva Conventions) among his family, including his juvenile son. He turned himself in so he could see his children and possibly secure their release, and instead we allegedly used them in his “interrogation” by abusing and degrading them and degrading him in front of them to increase the humiliation; then performing a mock execution of the juvenile son while the Gen was in his final torture session, so he died thinking his son had just been murdered in the next room.
Nothing to pursue, there.
Anyway – on p. 15 it looks like some reference to a human pyramid (shades of Abu Ghraib) doesn’t it? With an arrow to a block that is blacked out.
p. 16 indicates how enmeshed DOJ was in not creating any further paper trail on the torture, by noting that the drill/gun interrogations (yeah, how could those have been a threat of imminent death, huh?) were only going to be referred for admin reveiw with the insertion of “oral” for the referred for admin action section. No one wanted to put that in writing – how, um, covery uppy.
Also on p. 18, you’ve already noted that the notes indicate that the Crim Div didn’t really do an independent review – instead they specifically say that a “GC referral (referral circled) blacked out line declined (circled)under OLC opns re general issue” IOW, they didn’t look into whether there was cruel, unusual, prolonged damage, etc. – they just said “OLC opn generally authorizes this stuff, okay goody, notourproblem” or something like that.
Back on p. 15 (I found the handwritten notes the most interesting stuff) under the reference to 2 open cases, I was wondering about this reference, “NC GJ 6/17/04 polygraph” Why would they be working with a GJ in NC? Is that the location of one of the alleged torturers/abusers/depraved persons?
I also have to say the references to the death of Haji Sher Mohammad are new to me. Garrett seems more up to snuff on those details – I hope they check in.
If MB Buchanan is going to run for office, now would be an ok time for it to come out how she was involved in the vendetta against Wecht bc of his certification of homicide for Jamadi. But that won’t happen and before you know it, Lieberman will be basking in the glow of a Buchanon along with Collins & Snowe.
Oh well – over & out.
You seem to have a failure of understanding. It is really quite elemental. If the subject doesn’t, in fact, die; how could he have been threatened with imminent death? See?
Oh, wait, Mowhoush IS dead……
Just a brief addendum, but the CIA OMS Guideline document that the ACLU put up on Friday dates from 18 October, 2004.
The ACLU also has a later version (DOJOLC001145 – 35 page PDF) dated 15 January, 2005. Again, it is from the CIA to Dan Levin at DOJ.
MadDog, you amaze! Truly, thanks for all of your contributions.
Happy Halloween.
Kinda goes with bmaz’ theme from his earlier post. But different.
Thanks, EW, so much.
Jiminy Crickets! I’m never gonna think of “pigs in a blanket” the same way again. *g*
From the NYT, the weegurs are on their way! (some of them anyway):
I can understand why the Chinese Uighurs wouldn’t want to go back to China, but large diasporic communities of Uyghurs exist in the Central Asian countries of Kazakhstan, Kyrgyzstan, and Uzbekistan, according to the Wikipedia. Perhaps they all regard Uighurs as trouble-makers because they once had a state of their own. IIRC, they speak a Turkic language similar to Uzbek.
Bob in AZ
I guess the pendency of the Sup Ct review has nothing to do with that.
Not that I’m very hopeful on that front, with the Democrats in Congress having now jumped in to say only detainees who we can actually take to trial can come to the US – the innocent ones have to stay in GITMO detention. Bill of Attainder, much? Probably not so much with this Sup Ct. I do wonder if that argument is even going to be raised.
By saying he has revised the state secrets policy to one eminently reasonable instead of wildly overbroad, but that this case still requires invoking it, Holder is attempting to sound oh, so reasonable, rational and restrained. Like Obama in adopting Bush’s gutting of the Fourth Amendment, he’s putting his pig in Armani and Church’s.
I suspect his claim that the litigated cases are part of “ongoing programs” may carry more weight. I think you’re right, that these are discrete programs/crimes from the past, and that the only thing still ongoing they relate to is the breadth of information hoovered up by the government’s collect-it-all approach to digital communications. His claim that that collection methodology is now legal is questionable; it was criminal when done at the time relevant to these cases.
I don’t think either argument should win. But Holder has managed to make the legal thicket through which Vaughn and appellate court judges have to walk even thicker. Which makes Holder a criminal defense attorney for the administration, a heavier-weight version of Mukasey and Gonzales, not the AG of the United States. I wonder just how fast all this has former AG, Nuremberg Prosecutor and Supreme Court Justice Robert H. Jackson turning in his grave.
This is a weird move by Eric the Holder, it seems to me. He’s asking us to believe him when he says that even though he has to stop this lawsuit for secret reasons, nothing illegal or immoral is going on; and if you don’t believe him, just ask the Judge, who’s being given all the secret reasons. But they’re in the court of one of the Judges absolutely least likely to agree with, and vouch for, Eric’s version of things. So it’s gonna get knocked back in the court, almost certainly. So is this just to get the issue up to the appellate level(s), which will delay any eventual disclosure, and in which venue(s) they might reasonably expect better outcomes? I just seriously doubt Vaughn Walker is going to swallow this crap in the first instance.
Glenn has a post up on this very topic this morning and he includes the actual filing (32 page PDF) we’ve all been looking for.
And in that filing, see footnote 8 on page 6.
There the Obama DOJ attempts to slip one by the Court, and US, by explaining the new Obama State Secrets Privilege invocation policy and describing the individual requirements that must be met before they do so with this:
The Obama DOJ claims in the footnote to have met the requirements of Section 1.A, and to have met the requirements of Section 1.B.
But notice that while they describe the requirements of Section 1.C above, nowhere to they assert that they’ve met those very requirements.
By doing so, the Obama DOJ makes abundantly clear, that it in fact cannot meet the requirements of Section 1.C., and in fact this very state secrets privilege invocation is meant “for the purpose of concealing violations of the law or to prevent embarrassment to the Government”.
And only a four year old could possibly read it any differently!
I am shocked.
Not 4, but I guess I could read it a bit differently. *g* They say that the DNI is making the 1A cert on damage to national security. Then they say they got the AG to reveiw that and:
I think that could be read as arguing that the DNI’s declaration covered all parts of section 1, including 1C. Maybe, fwiw.
I went right to your footnote and haven’t read the whole thing, but is there a Declaration from Holder? I don’t think dropping a footnote saying he looked at something meets the standards for putting that in the record.
bmaz @10 re: timing – I don’t really know, but taking a look at index and section headings, I’m wondering if they failed to make the same sovereign immunity claim earlier in Shubert that they are making now? Since they are framing that as a subject matter jurisdictional argument, IIRC (you litigators jump in if I’m misremembering) you can raise that kind of argument at any point in a proceeding, and maybe they think that giving appellate courts the ability to rule on a grounds separate from state’s secrets is worth something?
Oh yeah, they can do it, no question. When I mentioned possible arguments of laches, waiver etc. I did not mean to imply they would carry the day. Presumption against it. I do think DOJ is coordinating an overall dog and pony show right now to try to put this crap to bed and behind them. And I hate it.
Don’t disparage dogs and ponies that way. It’s the circus sideshow “come see a
pickled frog in a jarcertified space alien baby”I want to see someone nail down Obama or Holder (or both) on this “for the purpose of” vis a vis criminal acts in the Executive. I want them to have to specifically address, “If there is evidence of Executive branch crimes that have been committed, are you saying that they can be kept out of courts under a claim of “states secrets privilege” based on the same Executive branch that committed the crimes certifying to the court that they have reasons other than covering up the crimes for invoking the privilege?” Are you saying that the Executive branch can commit crimes, sit on evidence of those crimes or destroy the evidence of those crimes, and a court and the victims of those crimes can do nothing about that as long as the Executive branch claims in a declaration that privilege isn’t being invoked to cover up the crimes? Are you saying that the Executive branch isn’t above the law, it can just operate freely outside the law as long as it invokes states secrets and the courts refuse to protect victims? ‘Splain.”
They don’t even hide it. To anybody with half a lick of knowledge and experience with litigation and how to read legal papers, that is exactly what they are, and have long been, saying. Reading the transcripts of different hearings, like in al-Haramain and Jeppesen is even more instructive. Although I have not seen a transcript, from other sources, I am told the 9th panel in Jeppesen about came out of their chairs a couple of times. And when you got Royce Lamberth exploding and headhunting for DOJ scalps, you have really crossed the rubicon; he is no mealy mouthed liberal judge.
Some of the additional documents that the Obama DOJ files that weren’t included in Glenn’s post, were provided by ABC’s Jake Tapper:
Public Declaration Of Dennis C. Blair, Director Of National Intelligence (11 page PDF)
Public Declaration Of Lt. Gen. Keith B. Alexander, Director Of The National Security Agency (14 page PDF)
Policies And Procedures Governing Invocation Of The State Secrets Privilege (5 page PDF)
My Lord. The unredacted information is so damning that I cannot fathom what those huge expanses of black must conceal.
Sorry – meant to cancel post; had intended only to reply to Peterr at 16.
At the end of the day it all comes down to one thing.
National security, as understood by the criminals of both parties running our government, means keeping secret from the American people the extent to which this government has deviated from the purposes of the Framers and Founders and has become a mechanism for enriching the rich and well-connected at the expense of the rest of us.
It’s like Bush Senior once said. If the American people knew what the government was doing they’d rise up and hang the leaders in the street.
National security=keep secret the fact that the middle class is being used to nourish and perpetuate the theft of its resources by the rich.
from deepest darkest Africa..
Thanks Marcy! If the craven summation by Holder isn’t a way to gracefully let him off the hook for some dirt the FBI managed to dig up, then “Vaughn Walker (the judge in this case, too)” needs a food taster.
Keep rattling the bushes Marcy, the snakes will have no choice but to run for deeper cover.